How Can the VA Reduce a 100%, Stabilized Rating?

This week’s blog post is answered by guest blogger Margaret Wadsworth, a regular contributor to Nolo and an attorney accredited by the VA to represent veterans.

Question: The VA has reduced my benefits. I am more than confident that this action is retaliation. Their reason for the reduction is ridiculous. The one examination I went to does not even come close to showing any change in my hand disability.

I have acquired federal regulations that specifically explain the rules of reducing a veteran’s disability compensation benefit. It appears the VA has bypassed these rules, in a hasty manner. The exam letter I received advised me that the comp and pension exam I would need to go to was just at the beginning of the very next week. And less than two months after the exam that they claimed was ordered as a mistake, I received a decision that my benefits would be lowered substantially.

The rating they reduced from 100% to 0% was a protected rating. It was protected as a stabilized rating, which has been at the same level for five years. It is also protected as a 100% rating, which can be reduced only after a re-examination has found there is a material improvement in the disability, and a material improvement in ability to function in life and work.

Furthermore, under 38 CFR 3.327(b)(2), the VA can’t send you to a re-examination if the disability has been as established as static or is of a permanent nature with no likelihood of improvement when the veteran’s symptoms haven’t shown improvement for five years or more.

I believe that this action is clearly retaliation for my self-advocating while attempting to attain a customized VA letter. I made an accommodation request for the letter, due to fact that the letter they wanted to provide me would not be equally beneficial to me as they are to other parties requesting special letters from the VA. Under laws I can make a section 504 request verbally, as I did. This accommodation request is a protected action under ADA law.

I don’t have time to go over the many past incidents I have had with the VA (one involving me initiating an ethics review. Even recently, I have had a request in for a new power wheelchair for over a year now. I have gotten nothing. I have been forced to use my one manual chair, because it’s all I have. The chronic soreness I feel throughout my body has risen dramatically since using a manual chair. It seems ironic that the evidence the VA is utilizing to reduce my benefits relies heavily on my use of a manual wheelchair, when I have been requesting a power chair from them for over a year now.

Answer: Thank you for your service, and I am sorry to hear of the ordeal you are going through.

If your disability is “static”, meaning there is no medical possibility whatsoever of any improvement, or if your disability has not improved at all in five years or longer, then the VA made an error in ordering a reexamination. However, although you have had your rating for five years, it receives only limited protection. For example, if your symptoms have shown medical improvement during those five years, and that medical improvement was more than temporary and lasted for a sustained period of time, the VA had the right to request the reexamination. But in such a situation, benefits can be reduced only if the reexamination report and your full medical history support the finding that the improvement is more than temporary.

Since the VA ordered a reexamination, the VA may have believed your condition had medically improved such that a reexamination was necessary to determine whether a decrease in your service-connected disability compensation was warranted. Since you were sent notice of this exam, even though the notice was very short, you were required to either reschedule or attend the exam in order to protect your benefit rate.

If for any reason you couldn’t attend the reexamination, the VA would have had the legal right to reduce and/or terminate your benefits, regardless of your disability rating or the fact that you had this rating for five years. Although generally a rating of 100% cannot be reduced unless the VA finds that your disability has materially improved and your ability to function in your life and work has increased, any rating can be reduced for failure to appear at, or reschedule, a reexamination.

If you attended the required reexamination, then your benefits were likely reduced based on the VA doctor’s finding that your condition had materially improved, as discussed above. You may want to contact a VA-certified attorney to evaluate the doctor’s report to determine if it is sufficient. Sometimes VA doctors do not have access to your full medical history when conducting a reexamination, in which case you can challenge the report. You can also challenge the report if it’s not thorough.

I would advise you to consult with a veterans disability attorney in order to have your case file reviewed for errors and to consider an appeal.

Regarding your request for a power wheelchair, I recommend you seek that assistance of a local Veterans Service Officer. See the VA Directory of VSO’s to find assistance in your area by visiting www. va.gov/vso/.

Regarding your Americans with Disabilities Act Section 504 request, I also recommend that you consult with a disability attorney to determine what your rights are and how to protect your interests. Good luck.

Margaret Wadsworth

Should I be worried about my upcoming disability review?

Question: I have been receiving disability for seven years and have received a letter saying Social Security does routine audits every three to seven years. Should I be concerned? Also, hearing in the news about the recent “billions of dollars paid to public who should have not qualified,” will this make it more difficult to be re-approved or have my case looked at more closely than normal? I figured you would prefer the long story short, so didn’t provide the particulars.

Answer: Social Security periodically reviews the condition of all Social Security disability recipients to confirm they still fit the definition of disabled – that is, that they are still unable to work. These reviews are called continuing disability reviews. So the letter you received is just routine.

Social Security should have sent you a disability award letter when you were approved for benefits, and that letter should have stated when you could expect your first review. If Social Security found that it was possible, though not necessarily likely, that your medical condition could improve, then your file would have been set for a three-year review. If Social Security didn’t expect your condition to improve, your file would have been set for a seven-year review. Generally, the files of disability recipients over 55 receive reviews less frequently than the above timeline. And in recent years, Social Security’s lack of funding has allowed the agency to do far fewer reviews than technically required.

But unless your condition has improved enough for you to work, a continuing disability review is not much to worry about. You won’t have to prove your disability over again. Instead, to terminate your benefits, Social Security would have to prove that there has been medical improvement in your condition – that is, that the severity of your impairment has become less severe. Also, the medical improvement in your condition must relate to your ability to work. In practical terms, this requirement means that you must have more residual functional capacity (RFC) than you had when your disability benefits were approved. If your RFC hasn’t changed (say you still can’t sit or stand for more than six hours), your benefits can’t be terminated. Social Security must also find that there is some kind of substantial gainful activity (full-time work) that you could do.

There are exceptions to these rules – such as Social Security finding there was a clear error or fraud in the original decision –  but in actuality, only about 5% of disability recipients lose benefits after a review. And no, while there may be more scrutiny on initial disability decision in the near future, unless policy and regulations are changed regarding disability reviews, it won’t be more difficult to pass a review because of the political climate.

To read further, see our article on how likely it is your benefits will be terminated after a review and the frequency of disability reviews.

Would waiting until age 62 help me get Social Security disability benefits?

Question: I applied for SSDI at age 60, shortly before my 61st birthday. My appeal hearing before the ALJ is apt to take place in early 2015, a few months before my 62nd birthday, in May 2015. I’m confused about how my benefits might be calculated — and whether it’s better to have waited age 62 (or not). So far, I’m handling my application pro se. Any information or guidance you give me about this would be much appreciated.

Answer: Age 62 is important for the purpose of Social Security retirement, since it’s the age of eligibility for early retirement benefits, but it’s not so important for Social Security disability insurance (SSDI) benefits. In fact, depending on the severity of your medical condition, Social Security may or may not take your age into account when deciding whether you are disabled.

If you meet the requirements of one of Social Security’s official disability listings, Social Security won’t look at your age at all. Likewise, if you have a physical impairment that doesn’t allow you to do even sit-down work, of any kind, Social Security won’t consider your age. Similarly, if you have a mental impairment that limits you so much that you can’t do even simple, routine work, Social Security won’t care what age you are.

However, if you have a physical impairment that limits you to doing medium, light or sedentary work, then you are much more likely to be found disabled if you are 60 or older. Social Security considers disability applicants 60 or older to be “closely approaching retirement age,” and for those over 60 who don’t have any job skills that they could transfer to less strenuous work, they are eligible to be found disabled under the “medical-vocational grid rules.” These grid rules take into account an applicant’s age, education, job history, and physical capacity to determine whether he or she is disabled.

For instance, if you are over age 60 and your doctor has limited you to light work (lifting no more than 10 pounds frequently and standing and walking no more than 6 hours per day), you’ll be found disabled – as long as Social Security finds you can’t do your previous job and you don’t have job skills or recent job training that you can use at another type of job. The same is true for those over 60 with a limitation to sedentary work. See Nolo’s article on getting SSDI after age 60 for more examples.

But the grid rules for closely approaching retirement age apply equally to everyone between the ages of 60 and 66. So while being 59 and on the cusp of turning 60 can be important to a disability decision, the difference in applying for disability between the ages of age 61 and 62 is not.

And it’s almost always in your favor to apply for disability benefits sooner than later, because you can only get retroactive benefits going back a year before you apply (if you were disabled before that).

COLA Increases Social Security in 2015

Social Security has announced that there will be a 1.7% increase in Social Security and SSI benefits for 2015. This is just a bit higher than the cost of living adjustment (COLA) in 2014, which was 1.5%. Along with this increase in benefits, many important Social Security limits and Medicare fees will change on January 1, 2015.

The average Social Security retirement and disability benefit is expected to increase to $1,328, the average disability benefit to $1,165, and the average surviving spouse benefit to $1,274. The most Social Security benefits a retiree can collect in 2015 will be $2,663 per month (but most people collect less than this).

If you continue to work while collecting early Social Security retirement benefits, your benefits will be reduced by $1 for every $2 you make over $1,310 per month. But if you will turn 66 during 2015, you can make up to $3,490 per month before your benefits are reduced (there is no limit once you turn 66).

The maximum amount of your income that is subject to the Social Security tax to fund Social Security retirement, survivors, and dependents benefits, as well as Social Security disability insurance, is $118,500 in 2015. There is no limit to the amount of income subject to the Medicare tax.

As to SSI, the new federal SSI benefit rate is $733 per month for an individual and $1,100 per month for a couple. The SSI payment amounts are higher in states that pay a supplementary SSI payment. Although some states have higher limits, in states without a supplementary payment, if you have income between $733 and $1,551, your SSI payment will be reduced, and over $1,551, your SSI will be terminated.

As far as determining your initial eligibility for disability purposes, in 2015 you must be making less than $1,090 per month to qualify for benefits, or $1,820 if you are blind. If you receive SSDI and are trying to go back to work, if you make more than $780 per month, it will count as one of your nine trial work months.

Note there is no increase in the Medicare Part B premiums and deductibles for 2015. However, there are some increases in the Part A and D deductibles. See Nolo’s 2015 update on Medicare for the details.

Can recent work hurt my chances for getting disability for anxiety?

Question: I have not worked consistently since October 2006. My anxiety and depression  and who knows what else is wrong with me have been the main factors in maintaining or seeking employment. I thought maybe working with people, under structure, and on a schedule might have contributed to a lot of my work apprehension. This summer I decided to do a freelance type project, by launching a crowdfunding project to produce a small video. The project raised about $11,000, and more than half of it went to expenses. 

This was a test for my condition that I failed. It was more than I could handle; it was overwhelming to complete the tasks the way I would have liked. I had anxiety so bad I couldn’t travel to film the video myself and had to pay someone to do it. I ended up in the ER on September 1 over stressing about it all and I thought I was having a heart attack due to chest pains or brain issues. Doc said anxiety.

That was clear proof for me that even working independently and free of traditional structure would not be good enough for my conditions. What is the date I can tell them I officially became disabled? This past September when I was in the ER is the date I was thinking of putting down.

Also, does my work this past summer make me ineligible, because you can’t make more than $1,070 a month? Or would the $11,000 not matter because I’d be listing my official disability date after I earned that money? I didn’t make any income in September or October.

Having no insurance, I don’t have much medical records. Just two records of visits to the ER for anxiety this year. And if I dig hard, could find the doc who said depression and anxiety years ago.

I’m just wondering how much my “work” this summer will affect their decision.

Answer: To qualify for Social Security disability, you must have a condition that prevents you from doing a substantial amount of work (generally, making more than $1,070), and you cannot have done a substantial amount of work after the date you became disabled. The date you put down on your application is called your “alleged onset date” of disability. If you put down a date of September 1, the work you did this summer won’t cause a technical denial of your disability application, but Social Security will look at your past work when it assesses your ability to do basic work-related tasks.

But you did call your work “a test for your condition that failed.” If Social Security treats the work activity as an “unsuccessful work attempt,” then you could try for an onset date that’s earlier than September 1. If you worked for under three months, and you quit because your medical condition made it impossible for you to do the work, your activity can qualify as an unsuccessful work attempt. However, if you choose an onset date after the last day you worked, it can be simpler for Social Security to approve your claim.

That said, you will be facing an uphill battle getting disability benefits because it is difficult to get approved for anxiety or depression without any physical impairments. You will need to prove that you have severe anxiety and/or depression, and that there is NO work you can handle, not even the most simple, unskilled low-stress type of job. (Read more about getting disability benefits for anxiety or depression.)

In addition, your lack of medical records does not help your case. You would be in a better position to prove your disability if you start going to a therapist at least once a month. And it would be best if the therapist can eventually fill out a mental residual functional capacity report (MRFC form) about you, listing the activities you can’t do (such as interacting with the public, performing activities within a schedule, and responding appropriately to criticism from supervisors). If you can’t afford to see a psychologist or psychiatrist, Social Security will send you to a consulting doctor or psychologist for a mental consultative exam, but a single consultative report is not likely to be helpful to your case.

Since you don’t have insurance, you should apply for Medicaid, which can pay for office visits but also show that you have tried to get medical treatment for your condition. The same is true for contacting community organizations that may provide free or low-cost services.

It’s also important to continue to try to get treatment the entire time your claim is pending to show the seriousness of your disorder. And yes, it could help if you could dig up the records from the doctor who diagnosed you with anxiety and depression years ago. It can help your case for Social Security to know how long your impairments have lasted, and to show why you haven’t been able to work much for the past eight years.

What if I Change My Mind After Delaying Social Security Retirement Benefits?

Question:

What if I delay retirement but then become sick, making it unlikely I’ll live long enough to break even on my delayed Social Security benefits?

Answer: Fortunately, if you decide to delay collecting Social Security until sometime after your full retirement age, there’s a way to reverse this decision if you become ill and either need the money right away or expect to die sooner than you had hoped…but only if you plan ahead.

If you claim your retirement benefits at full retirement age, then immediately “suspend” collecting those benefits, you reserve the right to unsuspend the benefits at any time and start collecting them. The real bonus is that you can request that you receive all the benefit payments owed to you since your full retirement age. Social Security calls this “reinstatement” of your retirement benefits. You will receive a lump sum of the benefits you would have received if you hadn’t suspended your benefits. Of course, this lump sum won’t include the delayed retirement credits that you were hoping would increase your retirement benefits permanently by waiting until 68, 69, or 70 to retire.

This is a helpful option to have in case your finances suddenly change for the worse or you become seriously ill and your life expectancy is unexpectedly shortened. In this way, claiming and suspending your retirement benefits is kind of like having an insurance policy. You suspend the benefits in the hopes that you will live a long and healthy life and not need to access the funds until age 70 (or 68 or 69, as the case may be). But if you run into financial trouble and need money, or you find out you have a serious or terminal illness and aren’t likely to live long enough to recoup the Social Security benefits that you lost by delaying collecting them, you can access the money at any time, right away.

For more details on delaying retirement, suspending benefits, and reversing the decision, see Nolo’s  article on Changing Your Mind About Delaying Social Security Retirement.

Can I Get Interim Assistance (IA) while waiting for SSI?

Question: We were wondering if you could contact us to give us more information on (IA). My husband is waiting on his court date for SSI and we are in need of financial help. He has asked his lawyer and local Social Security office and they are clueless to (IA) information for some reason. We live in Indianapolis, Indiana and any insight you could provide would be greatly appreciated! Thank you so much.

“Interim assistance” (IA) is temporary benefit provided not provided by Social Security or the federal government, but by your state government. It’s usually administered by your state’s public assistance (welfare) agency or department of social services.

Interim assistance is really a type of loan rather than a cash benefit. When you apply for SSI disability benefits through the Social Security Administration, your state may front you some cash to pay for living expenses, and you promise to pay the state back when you are approved for disability benefits and you get your SSI backpay from the Social Security.

Not everyone gets approved for interim assistance – you must qualify financially for your state’s public assistance program and your state agency must find that there’s a strong chance you’ll be approved for SSI benefits. (Note that those who apply for only SSDI (Social Security Disability Insurance) are not eligible for IA.)

When you apply for interim assistance, you sign an “interim assistance agreement” or interim assistance reimbursement agreement.” That allows Social Security to take a portion of your SSI back pay to pay back your state for the interim assistance money.

Indiana does participate in the Interim Assistance Reimbursement (IAR) Program. Contact the Family and Social Services Administration, Division of Aging or Indiana’s Disability Determination Bureau to find out how to apply. The statue that governs IA in Indiana is IC 12-9-6-2. For more information, see our article on SSI’s interim assistance program.

Shoring Up Social Security to Save the Trust Fund

The McCrery-Pomeroy SSDI Solutions Initiative, a project chaired by former congressmen Jim McCrery (R-LA) and Earl Pomeroy (D-ND) and funded by the Committee for a Responsible Federal Budget, has put out a call for innovative proposals to improve the Social Security Disability insurance (SSDI) program to prevent insolvency and provide long-term financial stability. Topics the initiative is calling for paper proposals on include the following:

  • Improving the Disability Determination Process
  • Modernizing Determination Criteria and Program Eligibility
  • Strengthening Program Integrity and Management
  • Improving Incentives and Support for Beneficiaries to Return to Work
  • Encouraging Disabled Workers to Remain in the Workforce
  • Improving SSDI Program Interaction with Other Federal, State, Local, and/or Private Programs
  • Moving beyond the Current “All or Nothing” System of Awarding Benefits
  • Encouraging Employers to Support Disabled Workers

I was surprised not to see any fiscal solutions on the list, such as raising the cap on Social Security (FICA) taxes, which currently taxes only the first $117,000 of a taxpayer’s income, at 6.2%. Income above this cap is not taxed for Social Security purposes. But perhaps this idea, which has been around for a long time, is too simple for the purposes of this initiative and not considered innovative enough. More details on proposal topics can be found here: http://ssdisolutions.org/call-papers. Proposals are due by November 1.

For those who want to read an overview on the future of Social Security, including why things aren’t quite as dire as they sound, read Nolo’s article on whether Social Security benefits will be there when you retire.

Can I Get My Student Loans Canceled When I’m on Social Security Disability?

Question: I received a heart transplant three months ago and am unable to work. I was just approved for Social Security disability. Will my student loans be automatically forgiven?

Answer: Unfortunately, no, student loan cancellation won’t be automatic – but an award of Social Security disability insurance (SSDI) benefits can help.

The federal Department of Education (DOE) will cancel (“discharge”) federal student loans for anyone with a total and permanent disability (TPD). The DOE considers a TPD to be an impairment that prevents you from doing any significant amount of work for at least five years. As you can see, this is a tougher definition to meet than Social Security’s definition of disability, which only requires you to be unable to work for one year.

So how does the Department of Education use evidence of an award of SSDI (or SSI) to judge whether you should receive a discharge of your student loans? When the Social Security Administration (SSA) awards disability benefits, the agency puts you into one of three categories based on its expectation of whether your condition will improve. The category dictates when you will receive a “continuing disability review” to see if your disability is still present. Here are the categories:

  • Medical Improvement Expected (MIE). Your condition is expected to improve in the short term. Your case will be reviewed in six to twelve months.
  • Medical Improvement Possible (MIP). The SSA believes it’s possible your condition will improve, but it’s not sure when. Your case will be reviewed in about three years.
  • Medical Improvement Not Expected (MINE). The SSA expects that your condition will not improve and you will be permanently impaired. Your case will be reviewed in five to seven years.

Your review date will be included in your initial award letter (if it’s not, contact Social Security and request a Benefits Planning Query). Only those who are given a review date of five to seven years qualify for a total discharge of their federal student loans.

Social Security does not place heart transplant recipients into the Medical Improvement Not Expected (5-7 year review) category, so they are not automatically eligible for loan cancellation. Recipients of a heart transplant fall into the Medical Improvement Expected category, and in fact, the SSA’s disability listing for heart transplant recipients says that these individuals will be considered disabled only for one year following the surgery. After that, the SSA will reevaluate the individual’s condition to see whether they can meet the definition of disability another way. Our article on disability benefits for heart transplant recipients lays out the complications that a heart transplant might face and the ways they could get disability benefits after one year.

That said, heart transplant recipients may still be able to get their student loans cancelled. If your doctor submits documentation showing that you are unable to work and that your disability is expected to last for a continuous period of five years, the DOE may agree to cancel your loans. For more information on applying for a TPD discharge from the DOE, see our article on canceling student loans due to permanent disability.

If that doesn’t work, when it’s close five years since your heart surgery and you are still clearly disabled, you should qualify for a discharge of your loans. At that point, you can prove your continuing disability by having your doctor submit documentation that you are unable to work and that your disability has lasted for a continuous period of five years. In this case, any loan payments you made during the time you were receiving disability benefits (specifically, since you sent in your original SSA notice of award to the DOE) should be returned to you. However, there may be no need to make payments during this time if you get a temporary deferment or forbearance due to hardship and disability. See Nolo’s article on loan deferment and forbearance for more information.

What Can a Representative Payee Buy for Someone on SSDI?

Question: I have been searching the Social Security site and I can’t seem to find a list of what a Representative Payee can and cannot purchase for their friend with Social Security disability insurance (SSDI) benefits.  Is there a list available, especially of what cannot be purchased?  “Use common sense” does not appear to be a very helpful answer.

Answer: After paying for the disabled person’s food, shelter, clothing, medical and dental costs, and any rehab expenses, the representative payee can spend disability benefit money on personal comfort items and recreation costs (such as outings, movie tickets, or magazine subscriptions). The disabled person does have the right to spend some discretionary money himself or herself, once the payee has made sure the person’s needs are met. (However, if there are drug or alcohol abuse issues, spending money should be given in small amounts and monitored as much as possible.)

As far as discretionary spending goes, Social Security evaluates what’s reasonable spending on a case-by-case basis. The payee really needs to know how the individual is living and what his or her needs are. This is why Social Security doesn’t publish a list of personal comfort, recreation, or entertainment expenses that are and are not allowed. What’s reasonable spending for some would be unreasonable for others. For instance, because a payee for a person receiving $700 in SSI benefits per month will have trouble paying for the person’s food, shelter, and clothing costs as well as any medical and dental expenses, purchasing a flat-screen HDTV for $300 would probably not be seen as reasonable spending, but allowing an SSDI recipient who receives $2,000 per month to make the same purchase might be reasonable, especially if the person enjoys spending a lot of time watching television and isn’t able to get out much.

Here are a few more details for representative payees:

  • A representative payee can use benefit money to pay past-due bills for the beneficiary (the person who is eligible for Social Security benefits) — if the beneficiary’s current needs are paid for.
  • If there is money leftover after meeting the beneficiary’s current needs and some discretionary spending, it must be saved for the beneficiary in a separate bank account.
  • The payee is not allowed to take a fee for payee services from the monthly benefit (unless the payee is a nonprofit organizational payee with written approval from Social Security to charge a fee).
  • Each year, the payee will have to fill out a form accounting for how the benefits were spent. Social Security will send the form to the representative payee each year.

You can some more information in our article on what a representative payee can and cannot spend money on. The key to remember is that spending must always be in the best interests of the beneficiary.